Why does the Supreme Court want ‘child porn’ cases to be tried as CSEAM? Explained

A recent Supreme Court ruling criminalized the possession and storage of child pornography (Child Sexual Exploitation and Abuse Material – CSEAM) and asked for clarification on how various high courts have interpreted the issue.

The Madras High Court had earlier this year quashed the criminal case against a 28-year-old man who had downloaded two child pornographic videos on his phone. The Chennai Police had filed an FIR under Sections 67B of the Information Technology Act and Section 14(1) of the POCSO Act.

The court had ruled that the “mere possession” of such content does not violate the law unless the individual has actively “used a child for pornographic purposes.”

However, the Supreme Court overturned the ruling, concluding that possession of such material amounts to criminal liability. The judges concluded that not only physical possession but also ‘constructive possession’ – that is, the power to control the material, combined with knowledge of that control – would fall under section 15 of the Protection of Children from Sexual Offenses Act (POCSO) , even if the person did not actively produce or distribute the content.

Decoding SC judgment

The Madras High Court ruling was challenged by two NGOs: Just Rights for Children Alliance and Bachpan Bachao Andolan. The petition, as quoted by The Times of India, said: “The impugned order… gives the impression that persons downloading and possessing ‘child pornography’ will not be prosecuted. This will encourage ‘child pornography’ and would be against the welfare of children. The impression is given to the general public that downloading and possessing ‘child pornography’ is not a criminal offense and that it would increase the demand for ‘child pornography’ and encourage people to involve innocent children in pornography.”

However, the Supreme Court bench noted that the misnomer of the term ‘child pornography’ does not capture the full scope of the crime and may lead to trivialization of the crime as pornography can be viewed as a consensual act between two adults.

“We discussed the continuing impact of ‘child pornography’ on child victimization and abuse…. We have proposed to Parliament to table an amendment to the POCSO… so that the definition of ‘child pornography’ can be referred to as ‘sexual abuse and exploitation of children’ (CSAEM). We have suggested that an ordinance may be introduced,” the Bench said.

How to interpret CSEAM

The SC found that CSEAM more accurately reflects the reality that these images and videos are not merely pornographic, but are records of incidents in which a child has been sexually exploited or abused.

“We further prohibit the courts from using the term ‘child pornography’ and instead the term… (CSEAM) should be used in court orders and judgments of all courts across the country,” the court said.

The ruling broadens the interpretation of CSEAM laws, which criminalize the mere possession of such material, and closes loopholes previously exploited in court rulings. Strengthens the POCSO Act as a tool to combat online child exploitation and provides for stricter penalties. Emphasizes victim protection, prompt removal of content, and advocating for the psychological well-being of child victims. It also calls on tech platforms to report CSEAM cases, improving cooperation between law enforcement agencies and online service providers.

Key recommendations to the government

The court recommended replacing “child pornography” with “Child Sexual Exploitative and Abuse Material” (CSEAM) in all court orders and legislation.

The court emphasized the importance of positive, age-appropriate sex education to prevent harmful sexual behavior and promote the understanding of consent, thereby discouraging the consumption and distribution of CSEAM.

Social media intermediaries must not only remove CSEAM but also report such content to local authorities under the POCSO Act. Compliance with the IT Act alone does not absolve their liability.

The court suggested raising awareness about CSEAM through public campaigns to destigmatize the reporting and increase community vigilance. It highlighted the need for psychological counseling and rehabilitation services for both victims and perpetrators, including cognitive behavioral therapy (CBT) for those involved in CSEAM.

What are constitutional and legal provisions regarding child protection?

Article 15(3): Gives the State the power to make special provisions for the protection and welfare of children.

Article 21: Right to life and personal liberty, including the protection of children from exploitation and abuse.

Article 39(e) and (f): Directs the State to ensure that children are not abused and are provided with opportunities and facilities to develop in a healthy manner, protecting their dignity and freedom.

Article 47: Focuses on improving public health, including preventing exploitation of children and ensuring their well-being.

Under POCSO (Protection of Children from Sexual Offenses)

Section 13: Defines child pornography (now CSEAM) and punishes its production, distribution and possession.

Section 14: Imposes penalties for using a child for pornographic purposes, with increasing severity for repeated offenses.

Article 15: Penalizes the storage of child sexual abuse material for commercial purposes, ensuring strict consequences for possession or storage.

Section 19: Mandatory reporting of violations under the POCSO Act, making it mandatory for citizens, including tech companies, to report suspected CSEAM-related activities.